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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> A M & Ors, R v [2009] EWCA Crim 2544 (13 November 2009) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2009/2544.html Cite as: [2010] 2 Cr App Rep (S) 19, [2009] EWCA Crim 2544, [2010] 2 Cr App R (S) 19, [2010] Crim LR 243

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		13 November 2009

Friday 13 November 2009

THE LORD CHIEF JUSTICE:

Introduction

1. There are a number of features common to these applications. Each applicant was convicted of, and sentenced for, murder. In each murder the weapon which inflicted fatal injury to the victim was a knife or knives. Each applicant was duly sentenced to life imprisonment or custody for life. In accordance with statute the sentencing judge assessed the minimum term to be served by the defendant before any question of his possible release could be considered by the Parole Board. Each now seeks to argue that the minimum term in his individual case was excessive.
2. Before addressing any of the individual cases we shall identify some broad considerations. Although the message is not new, it bears repetition. Eighteen months ago in R v Povey [2009] 1 Cr App R(S) 42 in relation to the prevalence of knife crime these observations were made:

"3. .... Every weapon carried about the streets, even if concealed from sight, even if not likely to be or intended to be used, and even if not used represents a threat to public safety and public order. That is because even if concealed, even if carried only for bravado, or from some misguided sense that its use in possible self-defence might arise, it takes but a moment of irritation, drunkenness, anger, perceived insult or something utterly trivial, like a look, for the weapon to be produced. Then we have mayhem and offences of the greatest possible seriousness follow, including murder, manslaughter, grievous bodily harm, wounding and assault. ....

4. .... Every knife or weapon carried in the street represents a public danger and therefore in the public interest this crime must be confronted and stopped. .... For the time being, whatever other considerations may arise in the individual case, sentencing courts must have in the forefront of their thinking that the sentences for this type of offence should focus on the reduction of crime, including its reduction by deterrence, and the protection of the public. ...."

3. The question in these cases is how the application of these principles to cases where the ultimate offence is not the carrying of the offensive weapon, or even wounding, or even grievous bodily harm, should be reflected in the tragic ultimate disaster: murder.
4. Schedule 269(3), Schedule 269(5)(a) and Schedule 21 to the Criminal Justice Act 2003 provide the structural sentencing framework. What is critical and is sometimes overlooked in argument (though in fairness to counsel who appear before us not today) is that the statutory arrangements do not diminish the principle that the sentence must reflect the seriousness of the crime. Consideration of the seriousness of the crime requires the court to have regard to "general principles" in Schedule 21. We endeavoured to highlight these considerations in a recent five judge constitution of this court in R v Height and Anderson [2009] 1 Cr App R(S) 117. At page 666 the court made these observations:

"28. .... The criteria which purport to identify those cases where the seriousness is 'exceptionally high' or 'particularly high' apply 'normally', but not invariably. They are not exhaustive of the cases which may fall into the 'exceptionally high' or 'particularly high' category, and they do not exclude the possibility that in some cases, probably rare, the seriousness may be such as to justify the 'exceptionally high' or 'particularly high' starting point, even when the express criteria 'normally' required for this purpose are absent. The same may indeed apply in reverse. In the light of and having regard to the relevant criteria, as required by the legislation, the judge must decide whether the seriousness of the crime (and any associated offences) should be treated as exceptionally high or particularly high, or neither. That will provide him with the appropriate starting point. Thereafter the judge must -- and it is a matter of obligation -- identify the starting point he has chosen, his reasons for doing so, and, where appropriate, his reasons for departing from what would otherwise appear to be the normal starting point.

29. We have lost count of the number of times when this court has emphasised that these provisions are not intended to be applied inflexibly. Indeed, in our judgment, an inflexible approach would be inconsistent with the terms of the statutory framework. No scheme or guidance or statutory framework can be fully comprehensive, and any system of purported compartmentalisation or prescription has the potential to produce injustice. Even when the approach to the sentencing decision is laid down in an apparently detailed, and on the face of it, intentionally comprehensive scheme, the sentencing judge must achieve a just result."

5. At the date when the sentences which we are considering today were imposed, Schedule 21 was silent or unspecific about cases of murder resulting from the misuse of a knife or knives. Indeed in Schedule 21 as it now stands the only weapons expressly identified are firearms and explosives. Such cases are normally to be treated as cases of particularly high seriousness. The present applications must be approached on the basis of the starting points as they are, and not as they might become, but in the overall context of our analysis of the true impact of Schedule 21. It is therefore not unreasonable for it to be suggested that the absence of any specific reference to the use of a knife should mean that the appropriate starting point should not be the same as it would be if the murder had been caused by a firearm or an explosive.
6. The difficulty is with the next stage in the process. Accepting that the starting point will not normally be the same as it would if the murder were inflicted by a gun or explosive, nevertheless the use of a knife and the precise circumstances in which it was used aggravate the seriousness of the individual offence. Paragraph 10, which identifies aggravating features for the purposes of the Schedule is illustrative or inclusive, but not, as has been said before, exhaustive.
7. For the reasons we have given, it is always an aggravating feature of any case involving injury -- and of course death -- that the injury or death has resulted from the use of a knife or any other weapon. In R v Richardson [2006] 1 Cr App R(S) 43, Latham LJ provided examples of "exceptional cases". None of those apply to the present circumstances. The question for the sentencing judge in the end is not the compartmentalisation of the specific offence within this or that paragraph of the Schedule but the proper judicial assessment of the appropriate sentence to reflect the facts of the individual case and its seriousness and such mitigating features as there may be. Justice simply cannot be done by mechanistic filling in of "tick boxes" or unconsidered assignment of cases into compartments.
8. These three cases involve three individual victims: three young men, all utterly innocent, not seeking trouble, cut down in the street, their lives brought to an untimely end. The result: desolated, devastated parents and families telling this court about the consequences to them through their victim impact statements; grieving and mourning; lamenting that their sons will not become the men they would have been; lamenting, too, the lives that their sons will not enrich.
9. Deaths in circumstances like these outrage and horrify the collective conscience of the community as a whole. We repeat, and until the message is heeded we shall go on repeating: anyone who goes into a public place armed with a knife or any other weapon and uses it to kill or to cause injury, and who is brought to justice, must anticipate condign punishment.

R v A M

10. AM is 19 years old. He was just short of his 18th birthday when he committed murder. He had already been in trouble with the police. His convictions include one offence of unlawful possession of a bladed weapon.
11. On 21 August 2009, in the Central Criminal Court, before His Honour Judge Pontius and a jury, he was convicted of murder. He was sentenced to detention during Her Majesty's Pleasure with a specified period of fourteen years. An appropriate order was made under section 240 of the Criminal Justice Act 2003. He was found not guilty on a second count of robbery.
12. There were two co-accused. KG, born in 1989, was convicted of manslaughter on the count of murder. He was also convicted of robbery on the second count. His sentence was eight years' detention in a young offender institution. AW, also born in 1989, was found not guilty on both counts.
13. At about 5.30pm on 7 October 2007 a 17 year old boy, Rizwan Darbar, the victim of the murder, was sitting on a bench with two of his friends in a park in East London. They were listening to music on a mobile phone. They were not looking for trouble. They were approached by the two co-accused. There was a short conversation. KG snatched the phone. The three youngsters remonstrated with the two co-accused. The deceased asked for the return of the phone. The applicant, who was a friend of his co-accused, approached the scene. He had a knife in his hand. It must have been visible because Gayle said, "Poke him". The applicant stabbed the deceased once in the upper abdomen. A single blow straight into the abdomen punctured the aorta. The deceased collapsed. He was taken to hospital. He subsequently died from that single stab wound which was measured at 1.9cm wide and 14cm deep.
14. In the meantime the applicant and his co-accused ran away from the scene. After the offence the applicant disposed of the knife and of the clothing he was wearing at the time when the fatal injury was inflicted.
15. On his arrest he declined to give any comment or explanation.
16. In his sentencing remarks Judge Pontius identified the problem of knife-carrying in a public place and the courts' responsibility to impose appropriate sentences to deal with "this prevalent behaviour". He was satisfied that it was the co-accused who had encouraged the applicant to use the knife "to ensure that Rizwan Darbar and his two friends did not manage to recover the mobile phone". The judge recognised that the applicant had no offences of significant violence on his record. He had been the victim of a serious knife attack only a year earlier and he "must therefore have been very well aware of the very real risks present when a knife is carried on the streets". There was not the slightest justification for the applicant to carry a knife on this occasion. The judge also accepted that he had not planned to harm anyone before he had joined the group after Gayle had become involved in the robbery, "but the knife had come out in an instant" and he delivered a single blow of "moderate, if not severe, force straight into the victim's abdomen". He recognised that he could not conclude that the intention went beyond that of causing really serious harm. The judge recorded the age of the applicant, the appropriate starting point suggested in Schedule 21, and accepted that there were no additional aggravating features identified expressly within the statutory Schedule. The judge recognised that the applicant's age had a direct and express effect on the starting point, and that there was an absence of an intent to kill. However, at the same time he had regard to the prevalence of this type of offence and public concern about the proliferation of knives on the streets. Thus he assessed the minimum term at fourteen years.
17. The submission advanced on behalf of the applicant is that the sentence was excessive; that insufficient account was taken of the mitigating features of the case; and that too much regard was paid to the issue of prevalence and public concern.
18. This case proceeded as a trial. The applicant did not have the benefit of a guilty plea. He was not of good character. The effect of his age had already heavily discounted the sentence pursuant to the terms of the Schedule. The judge took account of the fact that intent to kill was not established; but that still left the intent to do really serious bodily harm by the use of a knife to a vulnerable part of the deceased's body. For the reasons we have given the judge was entitled to take account of the fact that this applicant had gone onto the streets armed with a knife and that the death of the deceased was a direct consequence of the fact that he was armed with a knife.
19. As against all those considerations, we can see no ground for concluding that the sentence imposed by the judge was excessive or wrong in principle. Accordingly, this application for leave to appeal against sentence will be refused.

Juress Kika

20. The applicant Juress Kika renews his application for leave to appeal against sentence following refusal by the single judge.
21. The applicant is 19 years old. Between September 2005 and July 2008 he made six court appearances for nine offences. Although none was sufficiently serious to attract a custodial sentence, they include an offence of robbery and an offence of affray.
22. On 11 June 2009, following a six week trial in the Central Criminal Court, before the Common Serjeant of London and a jury, the applicant was convicted of murder. On the following day he was sentenced to custody for life with a minimum specified term under the Criminal Justice Act 2003 of 19 years. Allowance was made for the time spent on remand in accordance with statute.
23. There were two co-accused. Both Michael Alleyne and Jade Braithwaite were convicted at the same trial of murder. Both were sentenced to custody for life. Identical minimum terms of 19 years were specified.
24. The deceased was 16 year old Ben Kinsella. He was murdered shortly before 2am on 29 June 2008 in a public street in North London. He was attacked by the three defendants. He was stabbed a total of eleven times. He, too, was a wholly innocent victim. He offered not a shred of provocation. He did not say or do anything which could be misinterpreted as provocation. All he wanted to do -- and he tried to do -- was to get away from trouble, but he was cut down before he could reach safety.
25. The early problem involved Braithwaite and Braithwaite's perception of some insult or humiliation which arose after a confrontation between two groups of young men. Braithwaite was in one; the victim was in another, younger group. During the course of the confrontation Braithwaite was seen to gesture towards the waistband of his trousers, indicating that he had a knife. He was heard to threaten to use it. A fight broke out. During the fight one of Braithwaite's friends was struck and Braithwaite was once again heard to threaten to use a knife. At this stage Braithwaite and his gang ran away.
26. Feeling humiliated and seeking revenge, Braithwaite contacted the appellant and Alleyne. They were not reluctant to come forward to assist him. The three men made their way back to the area, out for revenge, enthusiastic to join in Braithwaite's fight. They followed the group, which included Ben Kinsella, as it made its way out of the area. A witness heard a remark that someone was going to be "shanked". Frightened, the group of young men started to run away. Ben Kinsella was at the back of the group. He became isolated. He crossed the road, but he was followed. He was hunted down. He was knocked to the ground between two parked vehicles, set upon and stabbed eleven times. One stab wound went into his heart. Another penetrated the chest cavity causing the collapse of his lungs. The stab wound to the heart was so ferocious that one of his ribs was split. He was left to die. The three assailants, intent on making their escape, made off without a moment's thought for him.
27. The appellant and Alleyne went to Alleyne's home address. There they disposed of some of their bloodstained clothing. Later they went to the home address of a cousin of Alleyne and they confessed that they had stabbed Ben Kinsella. They were arrested from that address while trying to escape. Braithwaite surrendered when he heard that his brother had been arrested.
28. On 2 July 2008 the three defendants were taken to the magistrates' court sitting at Highbury. On their way back to the various police stations where they were detained in custody their conversations were recorded. Those conversations were illuminating. They discussed the speed with which the killing had been carried out, what the available evidence might be, the possibility of CCTV footage present in the area, the possibility of a "snitching" (a witness coming forward), and what had happened to the knives. Overall there could be no doubt from their conversations that they were involved in this murder.
29. The Common Serjeant took the view that this was a case of men armed with deadly weapons which they had had no hesitation in using and using repeatedly. He took was satisfied that there was a joint intention to kill and that the operation which culminated in the death of Ben Kinsella was a joint enterprise in every sense. It was "an arrogant and unfeeling attack on someone who had done nothing and was unconnected with anything that had gone on before". He addressed each defendant individually. He noted the applicant's age and previous court appearances. He reflected on some of the information given to him about some of the difficulties the applicant had had with his upbringing. However, he said that the crime was aggravated by the fact that the group had assembled together and had attacked "an obviously younger, smaller and lone victim". He considered the starting point laid down in the Schedule and concluded that that did not provide a sufficient punitive element to reflect some of the serious features of this case.
30. It is submitted on behalf of the applicant that the single judge's decision was wrong and that leave should now be given to the applicant to appeal against this sentence on the basis that it was excessive.
31. We have considered that careful submission by Mr Dein QC. However, in our judgment there is no true mitigation. There was no guilty plea, no remorse, and no insight into the devastation that had been caused. That applies to all three of the applicants. It is true that this applicant was young. That is sometimes described as mitigation and it is always a feature to be taken into account by the sentencing judge. The judge noted that the applicant was just 18 years old at the time of the killing, that he had had a difficult upbringing, and that there was an absence of appropriate parental guidance. That is all correct, but this applicant knew exactly what he was doing. They all did. They assembled together as a gang armed with deadly weapons. There was no need for extensive planning. They had arrived to look for a fight and to assist Braithwaite's revenge. They were all equally involved. They all intended to kill the young victim. They had hunted him down and mercilessly done him to death to revenge an insignificant slight for which he bore no responsibility whatsoever.
32. We have considered the sentence imposed on this applicant, but in our judgment the single judge summed up the situation accurately when he observed:

"It is not .... seriously arguable that in the exercise of his statutory discretion the learned judge gave undue weight to aggravating factors and insufficient weight to such mitigating factors as are identifiable, principally age."

We agree with those observations. The Common Serjeant dealt with the three defendants on the same basis. That may have been of advantage to Braithwaite, but this applicant cannot mine any advantage to himself from it. In our judgment the sentence in this case cannot remotely be described as excessive. Accordingly, this application for leave to appeal against sentence will be refused.

R v Abdul Saddique

33. The third case to which we turn is an application for leave to appeal against sentence which has been referred to the full court by the Registrar.
34. Abdul Saddique is aged 25. He has nine previous convictions for twelve offences, which include a very serious offence of causing grievous bodily harm with intent for which he was sentenced to four-and-a-half years' detention. He was on licence from that sentence when he committed the offences to which we must now come.
35. On 13 July 2009, on the first day of his trial at the Central Criminal Court, a count of wounding with intent was added to the indictment which charged murder. The applicant pleaded guilty to murder and to wounding with intent. On 30 July 2009 he was sentenced by His Honour Judge Clifton for the offence of murder to life imprisonment with a specified minimum period of 21 years, and for the offence of wounding with intent to do grievous bodily harm a concurrent sentence of eight years' imprisonment was imposed. Appropriate credit was given for time spent in custody on remand.
36. There were two co-accused. Kalam Kazi, who was 24 years of age, was convicted of manslaughter and was sentenced to ten years' imprisonment. Appropriate credit was given for time spent on remand. A second co-accused was acquitted of both murder and wounding with intent.
37. On 8 November 2008, at about 2.30am, the applicant and Kazi were in the town centre in Ilford. They had spent the evening separately but met after telephone and text communication between them. It is clear from an examination of that material that the applicant was looking for a fight and he wanted others to join him.
38. At about the same time the two victims, Nabeer Bakurully and Mohammed Hader, were also present in the town centre. There was a confrontation between the applicant and Hader. The applicant stabbed him with a kitchen knife. In the meantime Bakurully was confronted by the other two men, one of whom was Kazi. Having wounded Hader, the applicant turned his attention to Bakurully. He stabbed him with two thrusts of the knife, penetrating the young man's heart. He died in the street in Ilford while paramedics who had arrived at the scene did their best to save him.
39. When he was interviewed the applicant declined to comment. His defence case statement asserted self-defence. That was an absurdity. After the defence statement was prepared, at about the time the trial was to be listed and now with the benefit of advice from counsel, he decided to plead guilty to murder and to wounding with intent as an alternative to the charge of attempted murder. That plea was accepted by the prosecution. A basis of plea was prepared. It was not acceptable to the Crown. Attention was drawn to paragraph 4 which "might have been of particular concern to the court". Paragraph 4 asserted:

"Once at home [the applicant] decided to go out again to purchase some food from a kebab shop in the High Street. Fearing a further confrontation with the group of youths who had assaulted him earlier, he armed himself with a kitchen knife and contacted his co-defendants to support him."

Of that assertion the Crown said:

"Those assertions fly in the face of all the evidence, including the terms of the text messages. The Crown have made it clear throughout that it would seek a Newton hearing where the defendant could be called to give evidence were he to maintain that stance. We say this was a mission of revenge and may well have been a wrong identification that led to the death."

Faced with that, the applicant had to decide whether to request a Newton hearing and to support the basis of plea in order to meet the Crown's clear, unequivocal position that this was a "mission of revenge". The opportunity was declined.

40. In passing sentence the judge identified all the essential features of the case. They bear repetition: a fatal stabbing of one man with a large, dangerous kitchen knife deliberately taken onto the street; the victims unarmed, showing no aggression. The judge noted that the Crown accepted that the applicant did not intend to kill the deceased but his view was

"bearing in mind the persistent savagery of your attack on him this is one of those cases where the distinction between an intent to kill and an intent to do really serious harm both resulting in death is marginal".

The judge set out the considerations which he believed aggravated the seriousness of this case. They are self-evident: the knife, the several stabbings, two victims, the aims of the stab wounds at vulnerable parts of the body, the deliberate infliction of the wounds, the recruitment of another man, and the previous conviction for wounding with intent which involved kicking a man's head when he was down. The sentence had to reflect that the violence embraced not one but two victims, the second suffering very serious injuries indeed from which, fortunately, he had recovered.

41. The mitigation pointed to on the applicant's behalf was the guilty plea. It was a very late plea following the absurdity of an assertion of self-defence in the defence case statement. In our view the judge sufficiently reflected such credit as was due for that late guilty plea.
42. The applicant was on licence from a prison sentence for a very serious offence of violence. He went out into the streets at night, having deliberately armed himself with a dangerous and lethal weapon, looking for a fight. There was no fight. Two peaceful men were attacked by at least two (the third stood by). The result was two victims, both innocent young men, savagely attacked.
43. The Crown was prepared to accept, as the judge recorded, that the applicant did not intend death. We pause to wonder whether that was not over-generous in the circumstances. The applicant intended grievous bodily harm. He was reckless whether death would be caused. The violence that he used was deliberate.
44. We can discern no double counting in this sentence. It was a case of double offences of violence. In these circumstances this application for leave to appeal against sentence must be refused.